Questions & Answers - Long service leave

Question:

From 1 Jan 2010, will the long service leave provisions from our NAPSA continue?

Answer:

Yes, but if a modern award covers the NAPSA employees on 1 Jan 2010, then the NAPSA will cease to apply. All NAPSAs terminate on 1 January 2014. Modern awards will not contain LSL provisions.

Question:

I was just wondering what the status of the development of a new national long service leave system is. It is supposed to be part of the NES under the Fair Work Act. But last time I heard, it was not going to be developed in time for the rollout of the NES in January. Can you please clarify?

Answer:

Yes, there is no expectation that the requisite agreement with the States will be reached in time by 1 January 2010. The NES does provide for a 'national' LSL scheme to be introduced in enterprise agreements.

Question:

Do the NES provisions on Long Service Leave preserve the LSL from NAPSAs or only Federal Awards?

Answer:

The NES provisions preserve Long Service Leave provisions from NAPSAs that apply to employees and expressly deal with Long Service Leave as well as Federal awards.

Question:

We have employees on individual letters of offers and Long Service Leave is cal-culated as per the LSL in each given state. Is this the same with Fair Work or will it change?

Answer:

Initially, that will be correct – i.e. the relevant State legislation will continue to apply. However, over time, it is proposed that the system will move towards a unified national system. However, not even a draft of this proposal has emerged at this stage.

Question:

Tasmanian Long Service Leave: At the moment Tasmania is the only State in Australia with 15 years service before Long Service Leave can be taken. Under the National Employment Standards, will a National System Employer need to provide 10 years Long Service Leave regardless of the State Award? The Tasmanian Government has said the will come across to the Modern Awards, but haven't done so yet. When that happens that will mean Tasmania will have 10 years long service leave, won't it?

Answer:

Long service leave is not currently dealt with by the National Employment Stan-dards (NES). This is for the reason you point out, namely that the States have differing long service leave regimes.

It is anticipated that long service leave will eventually be included in the NES. However, this will not be until a uniform regime is decided upon, at which time the NES will be amended to include long service leave provisions.

Question:

Currently we have an employee who works part time 4 days a week. Next year he is going to take long service leave for 3 months. The boss wants to get him back to work 1 day a week during his LSL, is this legal and permitted by the legislation?

Answer:

Although more information would be needed to provide you with a definitive an-swer, it is unlikely that this would be permitted by the legislation applicable to your employee. Each state in Australia has a separate (and different) long ser-vice leave regime, so you would need to look at the particular legislation that ap-plies to your employee to ensure that you comply with its provisions.

However, most jurisdictions place a restriction on the number of separate periods over which an employee can take their long service leave, which would preclude you from requiring the employee to work 1 day per week over the 3 month period. Some jurisdictions may allow you to come to an agreement with the employee that he work one day per week over the course of his long service leave, however you could not make this a condition of the employee's entitlement to take long service leave.

You should also note that taking adverse action against the employee (i.e. if you alter the position of the employee to his prejudice, or terminate his employment) because of his entitlement to long service leave, you may be in breach of the new General Protections provisions in Part 3-1 of the Fair Work Act 2009.